An Educational Resource on the Office of State Attorney General
Going beyond the headlines to examine the often overlooked issues and cases that highlight the wide-ranging impact and role of state attorneys general.
The NY AG recently gave a thoughtful presentation before the Big Law Business Summit on why the First Amendment never has protected fraud, and that lawyers should oppose the "very dangerous legal trend of ... First Amendment opportunists" who are attempting to use the First Amendment to block government investigations of potentially illegal behavior.
State AG's are stepping up their efforts on behalf of low wage earners at food chains. Today the Il AG in a Complaint filed by AAG Jane Flanagan, a long time friend of the Columbia AG Program, sued the Jimmy Johns Sub chain for non-compete clauses that effectively lock in their employees at their 270 Illinois locations. The food chain said they were "disappointed." The founder of Jimmy Johns, actually named Jimmy John Liautaud, says that he wants to "be the best at what I do," and "learn from mistakes." Well, Jimmy John, I hope you are learning that barring your own employees from seeking a better life is not only a mistake, but illegal.
It is no surprise to any NYC resident that Time Warner's claim of "blazing fast" internet service is, well, not exactly true. In an investigation of Time Warner led by Columbia Professor and long time friend of the Columbia AG Program Tim Wu, it appears that Time Warner and Charter had best make some improvements, or this case matter just might expand into a multistate review. And speaking of Tim, you just have to see his experience explaining net neutrality on a roller coaster with Stephen Colbert.
With various coal companies in or on the verge of bankruptcy, the AG of WVa has wisely retained a bankruptcy expert to protect his state's interest in assuring past clean up and restoration promises by the industry are carried out in the face of bitter litigation, where the hedge fund dominated creditors are battling for every dime. Because bankruptcy inherently deals in the world of broken promises, it requires sharp elbows and quick action by a state AG to make sure that disappearing assets remain for the public interest. An excellent paper by Columbia Law School graduate Tim Abbott, '07, analyzes this precise issue and remains highly relevant.
While almost all Indiana GOP office holders have chosen to remain silent in the face of a racist assault on a federal judge, the AG has shown his characteristic courage by speaking up in a thoughtful and balanced way when he noted: “As officers of the court, all lawyers have an obligation to maintain respect for our courts and judges. Even when we lose a case and disagree with a court’s ruling, we lawyers should not mock the judge nor cast aspersions about any judge’s fairness. If a litigant believes a court’s ruling was incorrectly decided, then they should appeal. My critique is not a political denunciation in the campaign sense; I am speaking not as a Republican but as an officer of the court in defending our legal system. Lawyers should refute rhetoric that undermines public trust in our American system of justice. This is not political, and Republicans have no more obligation than anyone else to be heard on this matter.”
There are days when the New York Times just infuriates this Maine voter. Today's editorial writers have read and written with approval about an excellent report from the Vera Institute on state criminal justice reform, and noted, "Gee! Look what state governments are doing on criminal justice! Who knew?" Just back myself from Indianapolis where I keynoted a gathering of state leaders convened by the In. AG at a law school deeply committed to on the ground justice, and having noted last week the statements of the ND AG, perhaps a little less myopia and a little more getting out of New York City by the grey lady is in order.
The well respected AG of North Dakota - Wayne Stenehjem - outlined a multi-pronged initiative to both relieve his prison overcrowding and accomplish the real "roll up your sleeves" way to accomplish criminal justice reform. The AG calls on his legislature to increase access to behavioral health treatment services in a vaiety of ways, including creating more addiction counselors. "I also know that a lot of these people ... could, if they got good, available, affordable, often long-term treatment, become contributing members of society," he stated. For this and other criminal justice reforms being carried out by attorneys general, go to this site.
I have had the opportunity to work with many attorneys general over the last 30 years, and I have to say that very few love the job with the longevity and the intensity of Il. AG Lisa Madigan. Names like Tom Miller (Iowa), Dick Blumenthal (Ct), Greg Zoeller (Indiana) and Lawerence Wasden (Idaho) all come to mind, but I think General Madigan captures the very essence of the job when she says in this profile that "being attorney general has truly allowed me to be a voice for justice for the people of Illinois and oftentimes the country — and I love it.” General Madigan spoke at Columbia Law School on Human Rights and also at Harvard Law School at my Spring Seminar on the Role of the State Attorney General, and in both situations inspired the students and faculty who heard her.
Calling it "exploitation in its worst form," the Md AG has sued Access Funding for its marketing of their purchasing lead paint settlements from low income families and then selling the downstream revenue stream. The AG is seeking to return $17 million to over 70 Maryland consumers and is receiving editorial support. The case is the result of a seven-month investigation. A spokesperson for the National Association of Settlement Purchasers called Maryland an "isolated place" and that the Maryland facts were unique. My guess is that other attorneys general will be carefully monitoring the practices of this growing industry.
During all of my time as Attorney General of Maine in the 1980's, I did everything I could to discourage high speed chases that all too often ended in unspeakable tragedy for police offices, innocent by standers and those pursued. Because the issue is always a matter of split-second judgment by individual police officers, I concluded that it was not something that could be resolved by legislation, but rather could only be addressed by constant and repeated police training on a local, county and state level. Maine has made progress in curtailing these chases and nationally there has been a reduction. Today's news carries the story that once again the Oh AG is showing leadership in developing a statewide policy on high speed chases for all of Ohio's law enforcement personnel.
AG's around the country are leading their Governors and Legislatures through the myriad of issues inherent in the criminal justice reforms that are occuring in many states. Working closely with prosecutors, state correction officials and advocacy groups, AG's such as Sam Olens in Georgia and Tom Miller in Iowa are shepherding reforms and emerging as national leaders far from the glare of the national spotlight. We at the National State Attorney General Program are continually monitoring these historic efforts and will continue to do so on this page and in my blog.
The Idaho AG, already in trouble with his own party as noted in my blog of April 1, continues to receive support in his legislative battles. Today he has announced that he has charged two prominent state legislators with campaign finance violations. All this while he is at the NAAG Presidential Initiative on modern policing efforts being held in South Dakota, so don't let anyone tell you that states with small populations are not nationally important.
An increasing number of attorneys general are gearing up to fight "notario fraud," a long-standing practice whereby scam artists illegally market themselves as being able to assist families with immigration issues. Attorneys general offices are being assisted in that effort by the Federal Trade Commission and the Diverse Communities Initiative at Columbia Law School as they focus their efforts on vulnerable diverse communities.
The NY AG has sued a health insurer for denying coverage to insured who have Hepititus C. His office then settled with seven other insurers on the same issue. The insurers say thatcoverage only kicks in when symptoms become advanced, but the AG (and private suits) say that that thisrestriction does not appear in the text of the coverage documents. I want to make two points. The first is that the tension between insurers and insured remains high, and the second is that in some states the AG is able to play a role either in litigation or in how that AG "represents" its client, the Department of Insurance all of whom have created complex regulations designed to keep these questions out of the courts. For those who follow the world of attorneys general, this is one to watch.
Although much is written about State v. Federal government acrimony, the day-to-day world of governing is often markedby repeated success. Today the Federal Trade Commission gave its fourth "Partner Award" to the NY AG Buffalo Regional Office in their joint efforts to crack down on illegal debt collection practices. Previously, the FTC had given "Partner Awards" to the AG Offices of Colorado and Florida.
The Alabama AG has ordered the "No Guns Allowed" signs removed from the non-secure areas of the Birmingham and Montgomery Airports as well as the Montevallo Public Library.
As each semester draws to a close, I meet one-on-one with each of my graduating students who within months will have joined our profession and be practicing law. In many of those discussions, my Harvard and Columbia students will ask me bluntly, "How do I know where to go with my career? Who should I be like? Where should I turn for role models?" I often answer by directing them to these video interviews done in 2009 where six of the finest public officials I know tell their personal stories. I never tire of watching former Attorneys General Abrams (NY), Bullock (MT), Woods (AZ), Merrill (NH) and Harvey (NJ), who along with former Deputy White House Counsel and law Professor Bill Marshall, share the paths they have followed that have made our world a more just place in which to live.
I am regularly astounded when many who should know better - including academics - speak and write at length on criminal prosecution and justice reform as if state attorneys general lack criminal jurisdiction. Today's tragedy in Ohio should make clear that it is often the AG whose office takes over the most difficult cases. For a thoughtful summary of AG criminal jurisdiction, let me refer you to this excellent Chapter from NAAG's Powers and Duties text that is written by NAAG Deputy Director and former Indiana DA, Chris Toth.
Led by the NY AG, eight attorneys general have written a letter to major retailers as part of their investigation into how they schedule their "on call" workers who are required to phone their employer just a few hours before they are to report. In 2015, several major retailers such as Pier 1 Imports and Abercrombie and Fitch agreed to end the assigning of on call shifts and post schedules further in advance. The implications for millions of workers are obvious, and this is an issue that will continue to grow among attorneys general.
Almost all AG's provide legal counsel to state licensing boards and therefore are now facing the issue of whether immigrants brought to the United States illegally as children will be able to work in these licensed professions in light of President Obama's 2012 Executive Order. Depending on the decision of the US Supreme Court in US v. Texas, the issue could become even larger. The legislature in one state, Nebraska, overrode a veto and came down on the side of the immigrants. One way or the other, all AG's will have to counsel their client licensing boards on this issue.
Professor James E. Tierney
StateAG.org was founded by James E. Tierney, former Attorney General of Maine and a Lecturer at Harvard Law School where he also directs the Harvard Attorney General clinic. For thirteen years he was Director of the National State Attorneys General Program at Columbia Law School.
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StateAG.org offers in-depth analysis of the role of state attorneys general in the American legal system. It was founded by James E. Tierney, former Attorney General of Maine and a Lecturer at Harvard Law School where he also directs the Harvard Attorney General clinic. For thirteen years he was Director of the National State Attorneys General Program at Columbia Law School.
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